Panel: WIPO Assistance Should Provide Developing Countries With Choices On Plant Variety Protection

by Catherine Saez, IP Watch

A side event to last week’s annual General Assemblies of the World Intellectual Property Organization looked at ways for developing countries to design sui generis system for protecting new varieties of plant. The event also looked into the technical assistance provided by WIPO, which, according to the groups, focuses only on the International Union for the Protection of New Varieties of Plants (UPOV) system.

The Association for Plant Breeding for the Benefit of Society (APBREBES), Third World Network (TWN), and South Centre organised the side event on 7 October.

Viviana Muñoz, coordinator, Development, Innovation and Intellectual Property Programme at the intergovernmental South Centre, said WIPO is the main provider of technical assistance in the area of IP, and it has a role to assist member states in the implementation of plant variety protection. Many developing countries did not have any plant variety protection before the 1994 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), she said.

The TRIPS agreement offers three choices to ensure protection on new varieties of plants: through patents, through a sui generis system, or a combination of patents and sui generis system. WIPO has a memorandum of understanding (MoU) with the WTO whereby WIPO can also provide technical assistance to WTO members, she said.

WIPO is or should be a leader in providing fact-based analysis and evidence on the impact of different IP rights on its country members, said Muñoz. This should serve to help countries understand what different options other countries have been taking on plant variety protection, how different models are being used, and what motivates these choices, she said.

Alternative Systems to UPOV, TRIPS Compliant

François Meienberg of Public Eye (former Bern Declaration) said UPOV was established to serve the interests of the European countries and the United States. It is a well-known fact, he said, that developing countries which have joined UPOV 91 – which is the latest version of the agreement, and according to civil society the most favourable to breeders – have been forced to join in order to enter into free trade agreements with the EU and the US. He cited Morocco, Peru, the Dominican Republic, and Costa Rica as examples.

Other developing countries, which had joined UPOV 78, such as Argentina, China and Brazil, did not upgrade to UPOV 91, neither did Norway, he said.

Some countries, such as India, Thailand, and Malaysia, have developed their own sui generis system, he added.

Article 15.2 (Exceptions to the Breeder’s Right – optional exception) of UPOV 91 provides an exception for farmers, Meienberg said, but it is a limited exception, since it allows farmers on their own holdings to use the products of their harvest, but exchange and selling of those products is not possible under this exception.

A 2005 World Bank publication [pdf] on intellectual property and plant breeding found that by far the most dynamic private seed sector in the sample of case studies (India) has grown and diversified without the benefit of any IP rights, he said. The World Bank publication also concluded that farmer seed systems are the main source of seeds for small-scale farmers.

Another 2008 report by the UN Development Programme found that UPOV tends to favour commercial breeders, could lead to the promotion of genetic uniformity, and could discourage “agro ecological” research, he said.

The informal seed sector is by far the most important system for access to seeds, he said, arguing that different countries and different economies need different systems of IP.

Model Provisions for Sui Generis System of PVP

Sangeeta Shashikant of the Third World Network said agricultural systems vary between developing and developed countries. In developing countries, the agricultural system is really dominated by small-scale farmers, and they are the main supplier of the food system, she said. UPOV creates a “one-size-fits-all” approach which is not an appropriate model, she added.

UPOV was not created bearing in mind agricultural systems in developing countries, she said.

She mentioned a 2015 working paper authored by Argentinian Prof. Carlos Correa entitled, “A Tool for Designing a Sui Generis Plant Variety Protection System: An Alternative to UPOV 1991.” The working paper introduces an alternative model to UPOV, and provides proposals for a sui generis system.

According to the working paper, model provisions should ensure a number of criteria, such as: the right balance between breeders’ rights and those of farmers and the society at large; the recognition and implementation of farmers’ rights; that the plant variety protection regime supports both the formal seed system as well as the informal seed sector; that breeders recoup their investments in the development of new varieties without undermining farmers’ rights, societal welfare and the environment; and that national PVP regimes are adapted to the agricultural profile of the respective countries. It also argued that such regimes are supportive of and do not counter the objectives and the obligations under the Convention of Biological Diversity, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, and the International Treaty on Plant Genetic Resources for Food and Agriculture.

WIPO Assistance Focuses on UPOV, Omits TRIPS Flexibilities

Nirmalya Syam, programme officer, Development, Innovation and Access to Knowledge Programme at the South Centre, said that under Article 4 of the Convention establishing WIPO, the organisation is mandated to assist states which request legal and technical assistance in the field of IP, as well as dissemination of information on IP protection through studies in the field.

In 2010, WIPO entered into an agreement [pdf] with the UN Food and Agriculture Organization (FAO), he said. Article 3 of the agreement mentions cooperation of work on matters “where intellectual property rights may intersect” on areas such as farmers’ rights and traditional knowledge, and calls for technical cooperation “as appropriate, on issues relevant to international instruments,” such as the ITPGRFA.

He said there is no evident participation of farmers in technical assistance-related consultations, which is mandated under Article 9 (Farmers’ Rights) of the ITPGRFA, and is specifically mentioned in Article of the WIPO/FAO agreement.

Across WIPO technical assistance methodologies and tools, such as the Methodology for the Development of National Intellectual Property Strategies Toolkit Tool 3 – Benchmarking Indicators, the focus is exclusively on UPOV and the benefits of PVP system, and is silent on TRIPS flexibilities available to developing countries and silent on farmers’ rights, and the importance of the informal seed sector, he said.

Recommendation 1 of the WIPO Development Agenda (DA) states that “technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries.” Recommendation 13 states that “WIPO’s legislative assistance shall be, inter alia, development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries,” he said.

He also mentioned Recommendation 14 of the DA which indicates that “Within the framework of the agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs [least-developed countries], on the implementation and operation of the rights and obligations and the understanding and use of flexibilities contained in the TRIPS Agreement.”

The question is how a development-oriented approach to plant variety protection should be mainstreamed, he said, adding it is important that this discussion takes place in WIPO, which should collate and conduct studies on flexibilities and options that are available to developing countries, and not limit itself to the UPOV system.

Munoz said the organisers had invited WIPO to provide a discussant in the panel but unfortunately WIPO informed them that this would not be possible.

Human Rights Council Working Group, Rights Of Peasants

Daniela Llanos Sanguesa, minister counsellor at the Bolivian Mission in Geneva, said the UN Human Rights Council has an open-ended intergovernmental working group on a UN declaration on the rights of peasants and other people working in rural areas being negotiated since 2012. From the beginning of the working group, participants have recognised the importance of the right to seeds, she said.

The working group is working on a draft declaration [pdf] on the rights of peasants and other people working in rural areas, she said, which represents “a unique opportunity to fill a gap in international human rights law, recognising peasants’ right to seeds.”

Today, there are increasing hurdles for farmers to access seeds, she remarked, in particular enhanced protection to IP rights, which appeared long after the right to food in the UN Universal Declaration on Human Rights, she added.

“The protection of IP rights, the TRIPS Agreement and the UPOV Convention, and the promotion of the commercial seed system has posed serious challenges to the maintenance and the development of the peasant seeds system, and the protection of customary rights of peasants to seeds,” she said.

Policy Space in TRIPS Flexibility, Says Indian Delegate

Srikar Reddy, counsellor at the Mission of India in Geneva who follows the WTO TRIPS Council, said UPOV 91 is not suitable for many developing countries.

UPOV 91 “is being promoted by WIPO as a sui generis model when developing countries approach WIPO for technical assistance,” he said. [Editor’s note: UPOV is housed within the WIPO building and headed by the WIPO director general in name, but is a separate entity.]

Article 27.3b of the TRIPS Agreement, which allows governments to exclude some kinds of inventions from patenting, such as plants, animals and “essentially” biological processes, according to the WTO has been under review since 1999.

Developing countries are of the view that Article 27.3b provides for a certain degree of flexibility for designing the most effective sui generis protection for plant varieties, Reddy said, adding that the TRIPS agreement does not specify criteria by which to judge if a sui generis system is effective and therefore it should be left to members to decide.

WIPO should promote the fact that under the TRIPS agreement, members have full flexibility to adopt either UPOV 91 or alternative sui generis systems, such as those implemented in India, Thailand, and Malaysia, or the one proposed in the Carlos Correa working paper, he said.

Egyptian Delegate: Change of Discourse, Impact Studies Needed

An Egyptian delegate, in the audience, said UPOV 91 is in contradiction to some perspectives that relate to human rights. However, she remarked, “such discussions don’t really sell when it comes to discussing with stakeholders.” Stakeholders in this process would be the multinationals, and their liaison at the country level, she added.

There is a disjoint between discussions between human rights and trade issues, and this is a trade issue, she said. The argument needs to be coined in language that demonstrates that there are aspects that might harm the large stakeholders pushing for UPOV 91, she said. The voices of those stakeholders are heard, she added, but the voices of the peasants might not be heard.

Studies have to move forward into impact studies in countries that have adopted UPOV 91, said the delegate. This should include: the level of food security and whether it has been impacted or not, the kind of transfer of technology that has come about, and advances in local research in the agricultural field as a result of joining or applying UPOV 91 provisions. It also should look at how trade interests of large stakeholders might be negatively impacted by UPOV 91 and that needs to be clear to them, because if they feel there might be a threat or a loss at the end of the road, they will not review their position, she said.

The change would in turn influence small and medium-sized agricultural businesses in national economies which have a role to play and a role in applying human rights, she said. For example, they provide work, a good environment for labourers in agricultural fields, and new agricultural methods, and this is considered a plus for example with seeds adapted to climate change, she explained.

Studies should be conducted on how the adoption of UPOV 91 impacts the agricultural structure in countries, and how it might impact agricultural biodiversity and food sovereignty as crops move from staple crops to those with commercial value, she said.


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